Race as/and the trace of the ghost : jurisprudential escapism, horizontal anxiety and the right to be racist in BoE Trust Limited

Abstract

In this note, a theoretical analysis and critique of the recent Supreme Court of Appeal (SCA) judgment of Erasmus AJA in BoE Trust Limited is presented. In it I offer two parallel but necessarily intersecting criticisms of the court's decision - one being a critique of its 'legal politics' (its underlying jurisprudential approach) and the other being a critique of its 'race politics' (its background racial ideology). I shall also examine the convergence between them, enquiring if there is, at least in this case, a "correlation between judicial style and interpretive method, on the one hand, and political ideology on the other"; that is, if certain techniques of legal adjudication, in this case formalism, provide a better fit for the articulation and concealment of certain political and moral positions - in this case, a racially conservative one.